Your Rights and Responsibilities
If your school district is requesting to speak to and/or receiving medical documentation from your physician who wrote a letter exempting your student from wearing a face covering please note the following information contained in this article Can a School or IEP Team Demand Access to Medical Records or Information? This document is useful information for all students not solely those on an IEP.
If your student is being bullied, harassed by staff, teachers, fellow students we strongly recommend you submit what is known as a Gebser letter to the district. There are templates letters here for students on an IEP, students on a 504 as well as students in general.
If a teacher is bullying your student, you should consider filing a complaint with the Commission on Teacher Credentialing
If your student on an IEP is being excluded from in person education due to COVID testing requirements or face coverings requirements, consider the following guidance. WE HIGHLY RECOMMEND YOU GET A DOCTOR NOTE FOR FACE COVERING EXEMPTION OR COVID TESTING EXEMPTION IF PERTINENT TO YOUR STUDENT.
1) CDE (CALIFORNIA DEPARTMENT OF EDUCATION) Special Education Complaint
The complaint process involves completing a form (at the link provided below) and noting specific violations of the IDEA (INDIVIDUALS WITH DISABILITIES EDUCATION ACT), as well as providing documentation for each accusation. Past complaints have included the following allegations (find the entire statute and code for special education here https://sites.ed.gov/idea/statuteregulations/#regulations):
- Denial of FAPE (FREE AND APPROPRIATE PUBLIC EDUCATION) (34 CFR §300.101)
- Failure to Provide Placement in the LRE (LEAST RESTRICTIVE ENVIRONMENT) (34 CFR §300.114)
- Failure to Facilitate Parental Participation (34 CFR §300.322)
- Failure to Implement the IEP (INDIVIDUALIZED EDUCATION PROGRAM) (34 CFR §300.323)
- Failure to Provide PWN (PRIOR WRITTEN NOTICE) (34 CFR 303.421)
We strongly recommend that all conversations with the school and district are documented in email or recorded IEP meetings (you may record IEP meetings if you provide notice to the school prior). If you have a phone conversation, follow up via email summarizing the call.
Once submitted, the CDE assigns an investigator to determine which allegations, if any, they will open an investigation into. Investigations conclude within 60 days and if the school is found out of compliance with the IDEA, CDE will instruct the school on what remedies must be implemented to restore compliance.
https://www.cde.ca.gov/sp/se/qa/cmplntproc.asp
2) Due Process
Due process should not be filed without the consultation of a licensed special education attorney. Statistically, on any special education related issue, the district prevails in approximately 50% of cases (Stats on due process in CA: https://www.californiaspecialedlaw.com/wiki/hearing-decision-statistics/2019-hearing-decision-statistics/. There is no discovery in due process, so we additionally recommend filing public records and educational record request in preparation.
The attorney should consider filing a “stay put” motion in tandem, to ensure that your child has the right to remain in their current placement, with all services and supports in their current IEP, until such time the due process proceedings have concluded. You may also want to ask about a ’10 Day Notice’ to the district, which could facilitate placement at an alternate school at their expense. Parents can do this on their own, but I always advise doing so with the guidance of an attorney.
What is ‘Stay Put’? https://www.understood.org/articles/en/stay-put-rights-what-they-are-and-how-they-work
10 Day Notice Sample Letter: https://serr.disabilityrightsca.org/serr-manual/appendix/q-sample-letter-ten-day-notice-of-parent-intent-to-place-student-in-non-public-school/
Parental Unilateral Placement: https://adayinourshoes.com/iep-unilateral-placement/
3) Office for Civil Rights, United States Department of Education
File a COMPLAINT
July 19, 2022
Contact: Selene Almazan, Esq., selene@copaa.org
New Guidance Clarifies Law, Urges Use of Evidence-Based Practices to Keep Schools Safe for All
WASHINGTON, DC – Today, in response to the U.S. Department of Education Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) release of new guidance packages designed to clarify use of disciplinary practices in schools, the Council of Parent Attorneys and Advocates (COPAA) Legal Director, Selene Almazan, Esq., issued the following statement:
“COPAA is pleased that OCR and OSERS each have issued guidance clarifying for school leaders, personnel, and contractors, including school resource officers/police that students with disabilities must be afforded all the civil and legal rights provided under Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act (IDEA). There is a pressing need to protect our children at school from discrimination, including through the use of exclusionary discipline practices (e.g., informal removals, suspension, expulsion, seclusion, restraints). The guidance comes at an important time – where the abuse directed toward Black and Brown and children with disabilities continues to rise.”
COPAA noted that OCR/OSERS included clarifications and access for schools and districts to technical assistance on the following:
- Nondiscrimination requirements under Section 504
- A student with a disability’s right to a free appropriate public education (FAPE) in the least restrictive environment (LRE) and clarification students with disabilities cannot be disciplined for behavior due to their disability regardless of nature or severity
- Section 504 legal requirements apply to contractors including school resource officers/police
- Students' rights and access to FAPE in the LRE and how it applies if threat assessments/violence risk assessments are used by a school or district
- Definition of informal removals (IR), what constitutes an IR/shortened school day
- Ending the use of seclusion and restraint (S/R) which are not evidence-based interventions
Almazan also congratulated OCR/OSERS for “ensuring that technical assistance in the use of evidence-based practices is available to schools, families and communities so they can work together to keep all students safe and ensure schools stop using the discriminatory and traumatizing practices known to subvert children’s legal rights and prevent their accessing equitable opportunities at school.”
COPAA is an independent, nonprofit organization of parents, attorneys, advocates, and related professionals. COPAA members nationwide work to protect the civil rights and secure excellence in education on behalf of the 7 million children with disabilities in America. COPAA’s mission is to serve as a national voice for special education rights and is grounded in the belief that every child deserves the right to a quality education that prepares him or her for meaningful employment, higher education, and lifelong learning, as well as full participation in his or her community.
Key Policy Letters Signed by the Education Secretary or Deputy Secretary US DEPARTMENT OF EDUCATION July 19, 2022
QUESTIONS AND ANSWERS: ADDRESSING THE NEEDS OF CHILDREN WITH DISABILITIES AND IDEA’S DISCIPLINE PROVISIONS July 19. 2022
POSITIVE, PROACTIVE APPROACHES TO SUPPORTING CHILDREN WITH DISABILITIES: A GUIDE FOR STAKEHOLDERS US Department of Education July 19, 2022
CALIFORNIA NEEDS ASSISTANCE (IDEA)
US Department of Education 2022 Determination Letters on State Implementation of IDEA June 24, 2022
If your student NOT ON AN IEP is being excluded from in person education due to COVID testing requirements or face coverings requirements, consider the following guidance. WE HIGHLY RECOMMEND YOU GET A DOCTOR NOTE FOR FACE COVERING EXEMPTION OR COVID TESTING EXEMPTION IF PERTINENT TO YOUR STUDENT.
1.) UCP Universal Complaint Process
File a COMPLAINT
2.) Office for Civil Rights, United States Department of Education
File a COMPLAINT
Further Items For Consideration
CA Tort Claims Act Government Code Claim Forms
You can ask your school district for the tort claim form. This is a precursor claim that is required by law in order to pursue litigation for monetary claims.
VIDEO Tutorial: Suing School Districts in CA (Guests: Tracy Henderson & Parisa Fishback) September 19, 2022
(FERPA) Family Educational Rights and Privacy Act
Back to School – Keeping Student Information Private August 17, 2023
Opting Out Of Surveys
Teach KIDS to Say "No" to Data-Mining at School January 3, 2023
Sample Opt Out of Surveys Template
The content of this site is not intended to be a substitute for professional medical advice, legal advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Always seek the advice of an attorney for legal advice.